Zoning Board Agendas and Minutes

MINUTES OF THE COHOES ZONING BOARD OF APPEALS HELD VIRTUALLY VIA THE ZOOM APPLICATION ON WEDNESDAY, July 22, 2020 AT 6:30 PM MEMBERS PRESENT: Mr. Greg Mollnow, Chairperson Ms. Mary Shanks Mr. Anthony Kusaywa Ms. Carolyn Dion, Alternate Member MEMBERS ABSENT: Ms. Joyce Baranski, Vice Chairperson Mr. Mark Cotch ALSO PRESENT: Joseph Seman-Graves, City Planner CONSIDERATION OF THE MINUTES FROM THE June 24, 2020 MEETING Chairperson Mollnow called the meeting to order at 6:30 pm and asked for the Board to review and comment on the June 24, 2020 meeting minutes. With no questions Chairperson Mollnow motioned to approve the minutes. Mary Shanks seconded the motion and it passed unanimously. YES NO ABSTAIN Greg Mollnow X Joyce Baranski Absent Mark Cotch Absent Mary Shanks X Anthony Kusaywa X Carolyn Dion X CONSIDERATION OF AREA VARIANCES AT 15 St. AGNES HIGHWAY: Chairperson Mollnow: Next on the agenda is a consideration of a use variance at 15 St. Agnes Highway. We have reviewed this a few times now and we were waiting to see the updated county referral. Joe can you read the new referral from Albany County. Joe Seman-Graves: Sure. So on Thursday July 16th, the Albany County Planning Board added five advisory notes to the original recommendation they had sent over in April. The updates advisory notes read as follows: (1) The City of Cohoes has asked the Albany County Planning Board to clarify its original recommendation and re-review the hardship standard in State Statue now that the referral has added context for the applicants request for the use variance; (2) The City of Cohoes Planning Board should assess the use variance with criteria set in State Statue: (a) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (b) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; AND (c) that the use to be authorized by the variance will not alter the essential character of the locality; (3) There are two, somewhat paradoxical, precedents in evaluating a valid non- conforming use. One is that maintaining profit does not qualify as an unnecessary hardship. This is especially true with a legal non-conforming use during a sale: "At this point, it would be good to mention briefly a property use that is especially hard hit by the reasonable return requirement. That is a nonconforming use, upon which an especially heavy burden falls when it must be shown that the user cannot derive a reasonable return from ANY permitted use." (NYS DOS Zoning Board of Appeals Law). The standard of reasonable return is applied to the owner, not contracted buyer (therefore the contracted buyer's ability to realize a return is not included in the assessment), and reasonable can mean some return, not maximum return. The other precedent is that a variance "runs with the land". Meaning that a previous non-conforming use can transfer with a sale, if the above criteria is still met. Specifically the City of Cohoes Zoning Code (§ 285- 75) establishes the loss of a grandfather clause after 1 year of discontinued use. Therefore if the property seller can establish continuous use from the time the non-conforming use was grandfathered in, up until today, with less than a year of interruption at any time, it may be possible for the ZBA to allow the non-conforming use to continue; (4) This same section of Cohoes Code also states the no legal non-conforming building, besides a single and multi family residence, can be expanded; and (5) It is the prerogative of a localities ZBA to administer these balancing test. Ostensibly the point of a zone is to minimize nonconforming uses, but a local ZBA is allowed to render relief to applicants in unique circumstances. Chairperson Mollnow: Thanks Joe, let’s move on and hear from the applicant at this point. Mr. George Slingerland: Hey everyone, I am the attorney for the applicant. Let’s go over the pro forma and then we can hit the five points from Albany County. In my pro forma I tried to do as good of a job as a I could to make it as clear as possible. What I did is provide seven options, I went through as many conforming uses as I could possible think of in an R-1 district. We ran the pro forma to see what the return is, starting with a single family lot and all the way up to a six house development. I used comparable sales information from Cohoes and I think we ran the full gambit of what could be done on the property while still be considered a conforming use. An important thing to consider is that one of the County recommendations is that the hardship really should be considered the hardship of the owner and I think we did a good job of showing Scott Noel’s hardship pro forma. Through all of our seven scenarios of conforming uses, every single one came as a loss. One of the largest costs involved and one thing that swings every piece of the pro forma is the fact that we have $100,000 right off the bat to demolish the existing buildings. None of the existing structures could be used for an existing use. I think we did a good job of demonstrating that in this situation it is more than just a mere inconvenience. To conform the property to current zoning everything would need to be a little bit of a loss to a massive loss. Chairperson Mollnow: George, let’s go back and go through the five points of the County review. Mr. George Slingerland: Sure. Joseph Seman-Graves: I did have a comment about the pro forma, not sure if you want me to read it now since we are looking at it. Chairperson Mollnow: Sure, let’s read it. Joseph Seman-Graves: The questions is this, could you not demo the existing buildings, but rather subdivide and build upon the green space. Mr. George Slingerland: I don’t think that would be feasible. Really because of how the property is laid out and where the utilities are currently coming in. It really would have an impact on the comp situation since the unused commercial buildings on the property would affect the saleability. In regards to the five points from Albany County, I can now go through those one at a time. So let’s start with the second point. I think most of those points have been covered in the past and I thought we had done a good job of putting most of those legs of the use variance to rest. At our last meeting we really focused on hardship of the owner and I think we did a good job of showing that by demonstrating that any conforming use does not provide any return. You have a ton of false negative equity in that it costs about $100,000 to demolish the existing buildings and by doing so you are losing most of the potential value that the property has in its current state. So I think that is easy to demonstrate that the plight of the owner is very unique. The property has been in the owner’s family for 80 years and the zoning has changed around it. As far as a grandfathered use there is no similar situation in the area. Additionally, the granting of the variance will not alter the character of the neighborhood. My argument is that our variance is not looking to change the use, rather we are looking to retain a use which will have no real change on the neighborhood. Looking to the next point. I think we addressed the first part of that by having Scott Noel joining the application and showing his hardship. The second half seems to be working in our favor. To my knowledge there has been no interruption in the use of the property since it began, so I believe that would allow the board to grant a continuance of that use. Lastly, this is a unique circumstance and I think the board would be remiss to take into account other projects that are happening right now. However, I believe that our application and the situation of the owner is unique to the neighborhood and to other projects that may be going on. Chairperson Mollnow: Thank you Sir. Mr. Scott Noel: I just want to state that this has been an operating business as long as I can remember. This has been a business my entire life. Thank you. Chairperson Mollnow: Thank you. At this time I would like to move to public comments. Joseph Seman-Graves: We had some letters of support sent in by Mr. Noel from community members. Mr. Noel stopped people they saw outside of their houses and asked what they thought. Mr. Noel had received seven letters sent in, all of which say the following: I am aware that the property at 15 St. Agnes Highway is applying for a zoning variance with the City of Cohoes from R-1 to Industrial I have no problem with this change as the property has been used commercially both currently and in the past. We also had letters of opposition sent in which read the following: Variance to the property at 1 5 St. Agnes Highway. As area residents, we recognize the potential of the parcel: The green space could be subdivided into three lucrative building lots for housing single-family homes which could easily add $1 million dollars in full- value assessment, based on the current homebuilding trend. That would not just beatify the area, but would also double the proposed assessment and increase revenue. Instead, the Zoning Board is being asked to significantly alter the essential character of our (R-1) residential neighborhood into perpetuity. Parking large commercial trucks and storing related material on site only hurts our home values and our quality of life - just take a look at the prospective buyer's current site and visualize it in our residential neighborhood. The Zoning Board has a rare opportunity to vastly improve a residential area or, conversely, allow the formal industrialization of that same area. We are additionally concerned that by granting the Variance, other parcels in the vicinity would be more easily rezoned to commercial use”. That was signed by what looks like to be 17 individuals. Chairperson Mollnow: If there are no additional public comments we will move to board questions. If there are no questions then I would like to make a motion to approve the use variance based on the pro forma information provided. There is not a reasonable return under the current zoning, the hardship relating to the property is unique as the use of the property has bene ongoing for nearly 100 years and the applicant is proposing to continue the use. The essential character of the neighborhood will not be altered as it is an existing business. Finally, the hardship was not self created as it is an approved grandfathered business that the City allowed to expand in the 2000’s which directly contradicts the language in our zoning code relating to legal nonconforming uses. I believe all four of the criteria have been met. Anthony Kusaywa seconded the motion and it passed unanimously. YES NO ABSTAIN Greg Mollnow X Joyce Baranski Absent Mark Cotch Absent Mary Shanks X Anthony Kusaywa X Carolyn Dion X CONSIDERATION OF A USE VARIANCE AT 431 COLUMBIA STREET: Chairperson Mollnow: Next on the agenda is the review of a use variance at 431 Columbia Street. The proposal is to subdivide a one-acre parcel out of a 2.3 acre parcel to construct a 9,100 sq/ft Dollar General facility. The remaining land will remain with the current owner and is not part of the requested rezoning. This has also gone through the County Planning Board and their referral states that the applicant must demonstrate an unnecessary hardship. Mere inconvenience and the fact that the property can be put to a more profitable use are insufficient reasons for granting a variance. The applicant should include an explanation that justifies the need for a variance with criteria set forth in state statute. The property owner also sent in a letter, Joe can you read that. Joseph Seman-Graves: This is from William Gipp. “To Members of the Zoning Board of Appeals: This letter is to inform you that I am the owner of the property at 431 Columbia St decided to have Big Blue Realty Group market the vacant land property. Originally, we had the idea of marketing this to residential customers but received no interest from any of this type of user. After a 6 month period of time attempting to attract residential interest, it became evident that the only way for me to achieve any kind of reasonable return on this Property would be to market this as commercial and mixed use. Since the 4 comers are already all commercial, I thought this would be a great solution: It was only after Big Blue Realty Group, my agent, started to use this approach did I start to see strong interest from potential suitors. I believe Primax is a great candidate: and, offers a great solution to develop this 1 acre front part of the vacant land. We appreciate the consideration here for you to work with Primax towards approving this 1 +- acre parcel of land to be developed by them”. Chairperson Mollnow: Thank you. At this time we will open up the floor to the applicant. Mr. Chris Boyea: Hello, I am Chris Boyea and I am with Bohler Engineering. Rob Neil is also on the line with us tonight. We are seeking a use variance for a single story retail building at this location. As you can see from the exhibit on the screen now, the lot is in close proximity to non single-family residential structures. The proposed development will only be looking at the one acre parcel fronting Columbia Street and our thought here is that we would just take the portion that has the hardship and ask for it to be rezoned. The rear of the property could probably stay compliant with the uses in the R-1 Zone. We are proposing a 9,100 sq/ft single story Dollar General with 30 parking spaces. Looking at the use variance criteria it appears that our application has some merit and we meet many of the thresholds that we need to overcome. It is a unique property in that if you take a look at the area I think we can say that we are the only vacant lot in this situation. This lot is surrounded by commercial/non-residential uses. It has been marketed for residential use and there has been no interest. I know that the car wash across the street was in the same situation as they were granted a use variance, so that was similar. In order to sell this lot as residential, it is not a situation where somebody can devalue the home and have a fire sale and say that you can get a $90,000 starter home for a new couple. This is a vacant lot, so what would have to happen here is that somebody would want to build their dream home here which is very tough in this market. It’s tough to garner buyers where they have other lots they could build their home at. It would be very tough to market a home in this current location. We were looking at potential negative impact on the community and we really couldn’t find too many. We are looking to develop the front half of the property with a Dollar General. It is a low- intensity use and it does not drag people to the community. It will service the existing community, it won’t generate noise or odor, there is no food preparation, It does not use any significant water or sewer. The average water and sewer use for one of these establishments is approximately 80 gallons where the average house would use somewhere in the nature of 300 gallons. Another benefit is that this development would bring taxes into the City of Cohoes, both school, City and sales tax. The last thing that I would like to mention about the uniqueness of this application, not only are we the only vacant lot here, but we are surrounded by commercial uses that have received use variances. We are also off of the intersection that has a residential subdivision across the street from our vacant lot. Not a big issue for us, but if you were trying to build a single family home here you would have headlights turning into this property. We have also provide elevations as to options of the types of buildings we could bring to the City. This is really saying that we want to fit in with the area and we are willing to make the necessary changes. Mr. Rob Neil: What we are looking at here, the bottom elevation is typical of what we have done in communities in NY. The majority have a similar elevation, but we are willing to put several options in front of the City. Chairperson Mollnow: Thank you. Are there any public comments? Ms. Lisa Sanford: I am writing again to state my opposition to the change is zoning status for this property. There already exists a Dollar General 1.3 miles away and I do not see what benefit another store would serve. CVS and Stewart’s are a stones throw away and sell food goods and household items. It would only bring more traffic and congestion to that area. With the proposal submitted last month by Dollar Generals representatives, it was stated that no one would build residential homes on that property anyway, because there is a landscape business, car wash, and Stewart’s across the street. The properties those establishments are on have been commercial for over70 years, long before many of the homes there now were built....and it did not prevent them from building. The present owner kept that land residential for himself and his family, excavated the land, filling in drainage ways to his desire, building sheds and storage buildings and allowed dumping on that property to fill his needs (all without city permits). It is only in the last 5-6 years that he has not resided there full time, has he been interested in selling the land. I would agree with the Dollar General reps that no one wants a home next to a business, and Mr. Walsh does not either! It would disrupt and devalue his property, as well as create more noise and traffic in the area. Please seriously consider the need for this business proposal. Ms. Donna Smith: I totally agree with my neighbor Lisa Sanford. I have lived on Maple Lane my whole life, it is a safe and quiet neighborhood with many senior citizens who want to keep it that way. The Dollar General representative states it would bring groceries to the area, well Stewart's and CVS already fill that void along with medication, has and car washes. I do not see people coming up from the city to shop since a brand new Dollar General just opened not do I see people coming from Latham since General Dollar already is in the strip mall smile away. Mr. Rob Neil: I want to point out that this will be a free standing store that will replace the store in these letters. It will be a relocation of that existing store. Chairperson Mollnow: Members of the board do you have any comments or questions? If not I would like to make a comment. As we have done with other projects, we have asked the applicant to meet all four criteria met. I do not believe we have received any information in regards to point one, being that the applicant cannot realize a reasonable return, provided the lack of return is substantial as demonstrated by competent financial evidence. We have not bene provided any competent financial evidence. The owner being able to subdivide his lot and sell the front portion for commercial while retaining a residential lot to sell in the rear, I just do not see that criteria being met. At this time I would like to make a motion to deny the applicant’s request for a variance. Mr. Chris Boyea: I think what we would like to do then is to request that the board tables this matter until we can gather that information and come back. Mr. Rob Neil: May I ask what are you looking for? The broker advertised this and that is what you would normally do. What type of financial evidence are you looking for? Chairperson Mollnow: Essentially, this one falls back onto the owner of the property. We need to see that he cannot realize a reasonable return. We need to see that there is financial evidence stating that the property cannot be developed as an R-1 use, and how has that effected the owner of the property. We need to see that he cannot realize a reasonable return under the current zoning without subdividing the lot and selling that section off for a commercial use. I would like to stress Albany County’s recommendation in that we are looking for a reasonable return, the fact that commercial may be more profitable is not justification for a use variance. I would also like to know how the alleged hardship has not been self-created. Mr. Chris Boyea: Understood and we will provide that information to the board. Chairperson Mollnow: Ok, so at this time I will make a motion to table the matter until that information can be provided. Carolyn Dion seconded the motion and it passed unanimously. YES NO ABSTAIN Greg Mollnow X Joyce Baranski Absent Mark Cotch Absent Mary Shanks X Anthony Kusaywa X Carolyn Dion X CONSIDERATION OF A USE VARIANCE FOR 378 SARATOGA STREET (JUNCTA LOT 1): Chairperson Mollnow: Last item on the agenda is the use variance at 378 Saratoga Street or JUNCTA lot 1. The applicant proposes constructing a 4,900 sq/ft Hoffman Car Wash facility with exterior vacuums services. The project will also provide for associated landscaping and storm water retention treatments. This is a variance from an MU-1 zoning district to an Industrial zoning district. Joe is there anything we have from the previous meeting on this? Joseph Seman-Graves: At the July 13th, 2020 Planning Board meeting the applicant received a negative declaration with conditions regarding SEQR. The conditions were to (1) receive a use variance from the ZBA; (2) Have the City of Cohoes Traffic Engineer review and approve the findings in the applicant’s traffic study and that is underway; and (3) Identify possible methods ad or treatments to be employ by the developer that would honor the history of the location. Additionally, at the same meeting the Planning Board also granted the applicant a preliminary site plan approval which is contingent upon the applicant fulfilling the same conditions as previously stated. Chairperson Mollnow: Thank you Joe. Would the applicant like to describe the project? Mr. Frank Palumbo: So in the context of zoning, the property is MU-1 and it is immediately adjacent to the industrial district where Mohawk Paper is. Starting with the uniqueness of the site, it is sandwiched between roadways in Dyke Avenue, 787, and Saratoga Street. The land across 787 is zoned MU-2 and you can see some evidence of some development happening along the river, but you can also see the current industrial use at Kellman’s. The pink area on the map is all industrial use with Mohawk Paper. The land across Saratoga Street is Mohawk’s railroad spur, which you wouldn’t expect development to occur. The property in question is a 1- acre site and one thing that makes this unique is that the majority of this site is fronted by roadways that are either right-of-ways without access by virtue of NYS DOT’s activity and controls and also the distance from the intersection to our driveway. We are limited here and any development in this 1-acre lot would have to put a driveway where we propose it and the Planning Board can verify that. The next factor is that there is a substantial grade differential on the property at that point of access with an immediate decrease in elevation from the road. We are showing the drive through with parking areas for vacuum spaces as well. Our use can fortunately work in this type of a situation by having a long driveway access leading into the site and then coming out. Not every use will have that same potential. We talked with the Planning Board early on in the concept development about what that did to this property and how a mixed- use design could actually be inhibited because the building would have to be larger which would require commercial/retail on the first floor with possible residential on the upper level. The fact that the industrial use surrounding it is not necessarily conducive to that type of development with residential uses surrounding the area. The confinement of the space really does make this property unique. Also unique is that it is adjacent to that industrial zone, and for all tense and purposes it is the beginning of that MU-1 zone, so it really fits into the character as a transition from industrial to MU-1. With relation to the context of the owner who Hoffman’s has an agreement to purchase the land, they have had the property marketed since June of 2018 without any activity until Hoffman’s approached them with that use of the site. The hardship in respect to it being self-created in terms of the access is that in a point in time the Planning Board had envisioned when they rezoned and subdivided the lot that there would be shared access between the parcel in question and the adjacent lot. It was the understanding, and probably incorrect understanding at that time, that the owner of the lot believed they would have access off of 787. At that time the subdivision was considered to have joint access, but that never materialized in the final subdivision map and that really is unique in that it constricts the lot. The adjacent lot had a proposal for the residential use but that lot is currently in limbo, but the fact that it did not have shared access made the limitations on this property all that more apparent. We think that Hoffman’s Car Wash puts together a great package, offers a great image, and what they do with their buildings well they are not your traditional car wash. These buildings have gables, nice pitch lines and are aesthetically pleasing and harp to a mixed-use development. The applicant is utilizing one of their smaller buildings and more successful buildings with high aesthetic quality. The use does not provide a negative impact on the mixed-use zone and it does not negatively impact the adjacent mixed-use properties. Lastly, when you look at the area around it, we do think this would be a good transitional use that works in concert with both mixed-use and industrial. Chairperson Mollnow: At this time we will open for public comments. If there are no public comments I would ask for comments or questions from the board. Joseph Seman-Graves: I have a few comments on what the applicant said. Going through the planning process the applicant is correct that the lot to the left had an approved site plan for a 40- unit residential development. That site plan was part of the original subdivision, in the sense that these properties were subdivided with respect to the size of the proposed development. The Planning Board was under the assumption that they had granted shared access with the subdivision, however, that never found its way into a resolution. So that parcel is currently in limbo and it cannot be developed at this point as the current owner is looking at another property for the aforementioned residential development and would ultimately do a land swap with this one if the plans get approved at their new site. Mr. Frank Palumbo: I would also like to add that the applicant would be happy to entertain a shared access, however, it is currently out of their control at this time. So it really is the adjacent property owner that is locking it up at this moment. Joseph Seman-Graves: Correct, we cannot propose access through that property at this point. Another point that I wanted to clarify was in regards to access from 787. When the NYS DOT was redeveloping 787, there was talks that curb cuts would be more accessible along 787 after construction was complete. That information was disseminated to investors who later purchased land adjacent to 787, and there is a caveat to that which was not conveyed to these investors. A curb cut can be looked at from two points of view, the municipality and the private developer. The municipality can get a curb cut for nearly nothing financially if you can prove that the curb cut leads to a public good, and in this case while many may consider it a public good, a car wash would not fall into that category in the eyes of the NYS DOT. Now a developer could also apply for a curb cut, however they would be looking at paying a very high price, for a similar project I was given a number of nearly $100,000. Additionally, in this case the proposed curb cut would most likely be too close to the intersection for DOT to even entertain. Chairperson Mollnow: Thank you. I have a question regarding the neighboring property. Will this use affect the neighboring property where there was an approved plan? Joseph Seman-Graves: That owner is currently looking for site plan approval at a different location. If they get that, then this property will be swapped and given to the Cohoes IDA. As of right now the site plan on that property has expired since it has been sitting idle for over a year. We discussed this at the Planning Board meeting and the Board determined that since that property is in limbo without a valid site plan, then the applicant from Hoffman’s would get preference and we would revisit the access and site plan for the adjacent property when that time comes. Chairperson Mollnow: Ok. My second question, well from what I can find is that prior to 2018 this property was an industrial zone, is that correct? Joseph Seman-Graves: So actually no, it’s a bit interesting. That series of properties was actually owned by the Canal Authority and around that time the City purchase that property with some other properties around the City. At that point none of the properties were zoned at all, so the MU-1 designation was the first zoning the property in question has had. Chairperson Mollnow: If there are no other questions or comments at this time, I would like to make a motion to approve this request for a use variance based on the information that was provided. Anthony Kusaywa seconded the motion and it passed unanimously. YES NO ABSTAIN Greg Mollnow X Joyce Baranski Absent Mark Cotch Absent Mary Shanks X Anthony Kusaywa X Carolyn Dion X Adjournment There being no further business, Chairperson Mollnow made a motion to adjourn the meeting at 7:53 pm, which was seconded by Member Shanks and passed unanimously.